Dangers of Taking Legal Action Against Assholes

The
New York Post ran a story earlier in
the week called Despot Measures: Should Workplace Bullying Be Outlawed?. I found it to be an interesting and balanced
story, as it described how a number of states -– including New
York and New Jersey -- are currently considering anti-bullying legislation. Essentially, the idea of these bills is to
punish employers that allow “equal opportunity assholes” to get away with doing
their dirty work, thus going beyond current laws against race and gender-based
workplace abuse. To quote the Post article by Brian Moore:

Professor
David Yamada of Suffolk University Law School has studied
workplace bullying for years. In response to the problem, he’s written
legislation that’s serving as a model for most antibullying bills across the
country, including New York and New Jersey.

Essentially
the laws would lower the bar for those who want to bring suit against a
tormentor. While one can sue now, such bids hardly ever win - these laws would
improve plaintiffs’ odds by creating a set of criteria for what’s actionable.
Under Yamada’s template, that would include “repeated infliction of verbal
abuse such as the use of derogatory remarks, insults and epithets; verbal or
physical conduct that a reasonable person would find threatening, intimidating,
or humiliating; or the gratuitous sabotage or undermining of a person’s work
performance.”

Yamada
says the law has sufficient hurdles to prevent silly, vengeful lawsuits. The
target must demonstrate “malice” on the part of the bully, for example, and
“there has to be a tangible showing of physical or psychological damages.”

I confess that
I've been ambivalent about such legislation. On the one hand, I do think that
equal opportunity assholes and the employers that lack the courage to stop them
do deserve to be punished. I also
recognize that the threat of litigation may encourage companies to take a more
aggressive stand against asshole behavior. On the other hand, I worry about the legalization of everything and that
those with biggest incentive for such
legislation to pass are employment lawyers. After all, anti-bullying
legislation means more work for lawyers who defend both assholes and their
victims. I am still trying to develop a
firmer opinion on this matter, and invite advice and arguments, but for the
moment, I think that the threat of the legislation is a good thing because it
raises awareness about the problem and might help some of the worst assholes
and their firms to reform –- but I am not sure I actually want any of this
legislation to pass.

There is, however,
another angle to legal action that I have more well-developed opinions about.
In the article, I am quoted as saying, if you are in an abusive workplace, the
best thing you can do is “Get out as quickly as possible.” I realize that this isn’t always possible,
and indeed, that is why I assembled a list of tips
for victims of assholes – which include the suggestion to people who can’t
or won’t escape that they ought to carefully document abuse, as that will help make case to HR, or if that
fails, for legal action. BUT I think it
is important to explain why I am so vehement in my opinion that, if you are in an
asshole filled workplace, getting out is the best solution. These opinions were clarified for me after
having an enlightened dinner with two world-class attorneys after my
speech last Monday at the Commonwealth Club. My three main arguments
against staying around, taking sustained abuse, documenting the case, and
fighting back – especially through legal action are as follows:

1. First and
foremost, as the two attorneys emphasized, to win a case against an employer,
an employee needs to demonstrate that he or she has suffered damages. This
means that THE MORE DAMAGE THAT YOU SUFFER, THE MORE MONEY YOU ARE LIKELY TO BE
AWARDED. This means that the worse the
abuse you take, and the longer you take it and the more harm you suffer, the
more money you have a shot at winning. Indeed, recall Professor Yamada’s point:

The
target must demonstrate “malice” on the part of the bully, for example, and
“there has to be a tangible showing of physical or psychological damages.”

So, the more you
lose – - the deeper your depression, your anxiety, and your financial losses, and the more physical ailments you suffer –-
the better your case. The implication
for me is WHY NOT GET OUT BEFORE YOU SUFFER TANGIBLE DAMAGES IN THE FIRST
PLACE? Or at least why not get out with as little damage as possible, and get one with your life?

2. Remember,
psychological abuse isn’t just something that “good people” heap on “bad
people.” As I show inThe No
Asshole Rule, research on emotional contagion, and on abusive
supervision in particular, finds that if you work with or around a bunch of
nasty and demeaning people, odds are you will become one of them. This not only
has ethical implications, it means – ironically – that you might just find
yourself in the odd position of suing others – and being sued yourself – to
recover the costs of workplace abuse.

3. Finally, as
those lawyers reminded me, the litigation process means re-living the damage
that you have suffered over and over again. You will have to tell your story over and over again, and rather than
getting past the incident, your “financial incentive” is not only to emphasize
all the damage you have suffered in the past, but to continually uncover
evidence of the damage that you continue to suffer. In addition, if you have never been through
deposition or trial with opposing legal counsel, remember, it is their job to
discredit your testimony – so you not only have to relive past distress,
painful new ones will be heaped on you during the litigation process. Again, even if you win your case against the
assholes, you are likely to suffer a lot of damage in the process. This drain on your time and energy as well as
the stigmatizing impact of being a plaintiff against a former employer may also
have an adverse impact on your prospects for future employment and promotion.

In closing, I want
to emphasize that I encourage and applaud people who fight back against
workplace assholes in any way that they can, including through legal
means. I encourage people who have
already suffered damages to fight back. And I am also painfully aware that many people are trapped with assholes
with no immediate prospect of escape, and that taking legal action of some kind
may be the only option left in some cases. At the same time, I believe that people who choose to take legal actions
against their employers should understand the risks they face… and that is why
I continue to believe that, if you work with a bunch of assholes, the best
thing to do FOR YOURSELF is to get out as fast as you can.

P.S. One of the
lawyers did point out an interesting benefit of bullying legislation for victims.
She noted that legislation that makes it easier to state a claim against an
employer for an abusive work place may encourage employers to settle such cases
much earlier. This means that a benefit of the
legislation may be that abused employees will have greater leverage to pursue a
settlement before filing litigation, and that settlement, in turn, might
give victims the financial cushion they need to recover and find another job. But I still have mixed feelings about whether
I want such legislation to become law.

Comments

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I just wanted to thank you for the information you provided in this article. On 02/24/2010 I resigned from my drafting job after working with an established 70 year old engineering company in the New Orleans area less than 2 years. I had super relations with the entire staff (for just about a year) until a new office manager was transferred in from another location. I expressed to him the intolerance my sinuses and breathing had to his non-stop air-freshener and cologne bathing. I even went to his superviser (Regional President of the company) and offered substitutions and suggested alternative types of fresheners I could tolerate (which fell upon deaf ears - 1 month nothing was ever done - the plug-ins spewed their chemicals). I developed persistant health problems from this new manager's refusal to replace his fragrance generators. Constant headaches from clearing my throat at work, watery eyes and runny nose at work, weeks prior to my resignation I was experiencing hyperactive bowel sounds at work, uncontrollable gagging/dry heaves and spats of uncontrollable crying from the helplessness (I'm a guy, I am not suppose to act this way... I had never cried in front of my co-workers let alone my wife like this ever... and I've been married now 8 years). I was diagnosed with MCS (Multiple Chemical Sensitivity) by my GP and Allergic Rhinitis by an allergist after allergy tests were performed. I filed 4 greivances against this individual to no avail.

The straw that broke the camels back was the retaliation and hostile work environment from this new office manager. Desk relocation (in the same room 10-15 away in the same air intake/distribution system, with reasons like "No Reason why, I have the Authority and My preference), work reassignment (to less complex work), talked down to in front of co-workers (like, answer me when I am talking to you), chastised (if you can't do the work then we'll assign less complex work for you) in emails carbone copied to co-workers. It all became too much to bear and I just walked out.
Money makes the world go around while the "True" workforce is expendable.
In my 20+ years of employment with various companies this BY FAR was the WORST boss I EVER had to deal with.
The downside to just walking out of a $50k a year job is fighting to receive unemployment.

I found a penny today after buying my powerball lottery ticket... ($212mil) then again.... I'm not THAT lucky!
Although a pro bono attorney in the New Orleans are would suffice!

Hello. Bob, I'm very impressed that you posted my October 13 e-mail, because I complained about your ignoring the "Jihad the Jerk at Work" method. Don't get me wrong, I think your "No Asshole Rule" book is brilliant, and opens totally new & important progress in advising CEO's & top level managers on getting rid of jerks in the workplace top-down ... excellent stuff. I just don't think your book has much to offer the masses of lower level workers & managers about resolving the jerk at work problem bottom-up. That's where the Jihad the Jerk at Work method comes in. I continue to get strong praise from workplaces all over the country on how effective the JJW method is. There's just no substitute for safe, direct action that forces management to do its job and get rid of bullies, tyrants, incompetents, and predators in the workplace. It was the only way we could get rid of the very worst managers in the Fortune 500 Companies I worked in -- the only way (also proven to work well in Government Agencies and the Military). The movement is gaining strength as the word spreads. If you know of any groups or organizations out West who'd like to see my JJW presentation, let me know. Things get very exciting when live audiences are exposed to the method.
all the best,
Ned Fergusson
(973) 331-8278

Bob, I'm disappointed you didn't mention the "Jihad the Jerk at Work" method, which is detailed in the book I sent you in March. It's an extremely effective method, the ONLY method, proven in Fortune 500 companies, where workers can check off appropriate internet boxes on the "101 Offensive Behaviors List", fill in the blanks on the cover letter to the jerk's boss form recommending action, and paper clip these forms to the front of this massive book, which is sent ANONYMOUSLY to the jerk's boss. The jerk is usually transferred within 30 days. This method is very safe, and effective, and eliminates the need to follow your advice to give up & run away. The problem with running away is that you'll find jerks in every workplace -- why run away all your life when you can force jerks out easily ?? You owe your readers better advice, Bob !! Why do you keep ignoring this excellent method ??